Judge builds respect through years on the bench

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File/The Dallas Morning News

Patrick Higginbotham joined former Supreme Court Justice Sandra Day O’Connor during a Dallas Bar Association event last year at the Belo Mansion in Dallas. His friend Charles Matthew says the judge has “a cowboy common sense about life.”

When the U.S. Supreme Court told the U.S. Court of Appeals for the 5th Circuit to reconsider its decision upholding the University of Texas’ race-conscious admission policy, analysts predicted the lower court would quickly strike down UT’s diversity effort.

The 5th Circuit is widely considered the most conservative federal appeals court in the country. Republican-appointed judges outnumber Democratic jurists 2-to-1.

Enter Judge Patrick Higginbotham, appointed by President Ronald Reagan and once a conservative favorite for the Supreme Court. For months, Higginbotham studied relevant law, as well as UT’s admissions program and its statistical results.

On July 15, he issued his new opinion: UT’s race-conscious program is legal because it is a narrowly tailored part of the university’s more holistic approach to student admissions.

In a 41-page decision that more than a few legal experts call a legal masterpiece, he offered the most detailed analysis ever of the legal, historical and public policy issues surrounding race and university admissions.

“It was a brave decision,” says Charles Matthews, the former general counsel of Exxon Mobil Corp. and a longtime friend of Higginbotham. “This case is another example of Pat laying out a road map for the future. He again demonstrated that he has no political agenda.”

What the judge has is “a cowboy common sense about life,” said Matthews, who owns a ranch near Higginbotham’s ranch in Blanco.

David Coale, a partner at Lynn Tillotson Pinker & Cox in Dallas, says Higginbotham has proved himself to be brilliant, fearless and independent.

Coale says Higginbotham took the time to actually understand the nuts and bolts of the UT admissions policy, to explain the statistical necessity of the race-conscious effort, and to detail the specific results it has produced.

The opinion is effective, he says, because the judge was able to show that highly qualified whites and nonwhites benefit under the UT plan.

Higginbotham wrote that UT’s policy allows the university “to reach a pool of minority and non-minority students with records of personal achievement, higher average test scores, or other unique skills” that it otherwise would not attract.

Then, the judge forcefully reminded the Supreme Court, which might decide to review his opinion, of its own prior decisions.

“It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity,” Higginbotham wrote. “This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts — the classic assertion of the humanities.”

Four decades

Higginbotham, who turned 76 this year, has authored more than 400 opinions during four decades on the federal bench. He spent the last 32 years on the 5th Circuit, which decides the most important federal civil and criminal disputes in Texas, Louisiana and Mississippi.

His decisions have redrawn congressional election maps to make them fairer to minority voters, transformed securities litigation, altered bankruptcy proceedings for individuals and businesses, expanded religious liberties, upheld state restrictions on abortions and favored some federal laws limiting gun sales.

His opinions have blasted Texas judges for their mishandling of death penalty trials, slammed his fellow 5th Circuit judges for not giving more deference to jury verdicts, and broken new ground by ruling for the first time that Texas judicial elections were governed by the federal Voting Rights Act.

And yet, lawyers repeatedly comment on how humble and approachable Higginbotham is — not something that can be said about every federal appeals court judge. Close friends say his childhood shaped his views on life and the law.

Patrick E. Higginbotham was born in 1938 in rural Alabama. His father was a dairy farmer who struggled to make ends meet. As a kid, young Pat sold collard greens from the back of a truck to earn extra cash.

When he was 12, the town built a tennis court. At 14, he traded his hunting knife for a tennis racket and moved into the YMCA to focus on playing tennis. He earned a scholarship at the University of Alabama from its athletic director, legendary football coach Paul “Bear” Bryant.

“Pat grew up poor and knows what it means to have a tough upbringing,” says longtime friend Jim Coleman, a partner at Carrington, Coleman, Sloman & Blumenthal in Dallas. “That experience is part of his character and made him the man and father and judge he is today.”

Higginbotham finished college and law school in just five years. He tried his first case, for the U.S. Air Force JAG Corps, at age 22.

After the military, he moved to Dallas to join the city’s oldest law firm at the time, Coke & Coke, where he specialized in antitrust litigation.

‘Judge Pat’

In 1975, President Gerald Ford nominated Higginbotham to the U.S. District Court in Dallas. He was at the time the youngest federal judge in the country.

He was so young that many of the older lawyers who practiced in his court called him “Judge Pat” for years. It was clear to them early on that “Judge Pat” was going to be a force on the bench.

In 1980, the federal judiciary consolidated eight large securities-fraud class-action lawsuits filed across the country and sent them to Higginbotham.

Scores of shareholders of Dallas-based LTV Corp., a diversified holding company with revenue of $7 billion, sued the company after LTV restated three years of earnings and its stock price plunged.

In determining whether the plaintiffs relied on LTV’s alleged misrepresentations, Higginbotham issued a groundbreaking opinion on the “fraud on the market” theory. He wrote that the “presumption” that investors rely on a corporation’s misrepresentations as part of the information presented by the marketplace is based on “common sense and probability.”

LTV appealed to the 5th Circuit. A three-judge panel wrote: “The issues raised in this case are complex, and at first glance, confusing, but the district judge did an admirable job of sorting out and resolving the complexities. The district court’s findings are errorless and its conclusions of law comport fully with our conclusions. We therefore adopt Judge Higginbotham’s opinion as our opinion on appeal.”

The Supreme Court later adopted Higginbotham’s specific language.

In 1982, Reagan promoted Higginbotham to the 5th Circuit, which, at the time, was packed with moderate and more liberal judges.

He was a frequent dissenter in those early years, but eight appointments by Presidents Reagan and George H.W. Bush pushed the 5th Circuit in a considerably more conservative direction. After President George W. Bush nominated six more judges, it became known as the most conservative federal appeals court in the nation.

“When I joined the 5th Circuit, I may have been the court’s most conservative judge,” he says. “Now, I’m probably left of center, even though I don’t think I’ve changed my views at all.”

Higginbotham says death penalty cases continue to bother him. He’s not against capital punishment; he’s voted to uphold four times more death sentences than he’s voted to overturn. But he believes the courts need to go the extra mile to make sure the defendant gets a fair trial.

As a result, he’s voted to reverse the death penalty in cases where defense lawyers slept through portions of the trial, came to court drunk or did very little work on their client’s case. He blasted prosecutors for withholding evidence and allowing witnesses to fabricate testimony.

The judge’s pen

Even fellow judges have not been immune to his pen.

In 2008, Higginbotham criticized Texas judges in an opinion reversing the death sentence of a North Texas man, after the state judges refused to hold an evidentiary hearing about his mental health.

“The life and death of a defendant, determined without hearing cross examination to resolve disputed material facts, here violates the core principles of due process,” Higginbotham wrote. “Judges in each step of the case … decided they could sort through the complicated scientific evidence and conflicting lay opinions themselves, without the aid of adversarial truth-seeking.”

Higginbotham took a lead role in the development of the Center for American and International Law in Plano, an educational institute that has trained more than 600 lawyers and judges on death penalty trial procedures.

“If you really support capital punishment, you need to support competent lawyers and judges,” he says. “We make enough mistakes when all three legs of the stool [prosecutors, defense lawyers and judges] are strong, but if one or two legs are weak or incompetent, then a fair trial is nearly inconceivable.

“I would not be surprised if the death penalty goes away,” he says. “I’m not sure people support committing the necessary financial resources to make sure the process is fair.”

Higginbotham says he feels sorry for some lawyers who get nervous at oral arguments and experience brain freeze. Other lawyers, he says, make the mistake of having too much fun the night before oral arguments in New Orleans.

Fellow 5th Circuit Judge Henry Politz jumped over the bench, rushed to the man’s side and loosened his tie. The attorney looked up, then closed his eyes again.

“Oh, hell, Hank,” Higginbotham said. “He woke up, saw you and thought you were going to kiss him and passed out again.”

Bad cases, good law

Higginbotham has helped even bad cases make good law.

Last year, he heard a case in which Louisiana’s state board of funeral directors ordered a group of Benedictine monks to stop selling low-cost caskets from their monastery outside of New Orleans. The regulators said that only funeral directors licensed by the state were permitted to sell coffins.

Higginbotham found the state regulation to be ridiculous.

“The funeral directors have offered no basis for their challenged rule and, try as we are required to do, we can suppose none,” the judge wrote in his opinion striking down the rule.

“Louisiana does not even require a casket for burial, does not impose requirements for their construction or design, does not require a casket to be sealed before burial, and does not require funeral homes to have any special expertise in caskets,” Higginbotham opined.

That, says Coale, the appellate-law expert, was vintage Higginbotham: funny, incisive and important enough to be taught in law schools.

“It is extremely rare for a federal appeals court to strike down a state economic regulation on due process grounds,” Coale says. “But this is a really important landmark on how that constitutional guarantee impacts economic regulation.”

Legal experts say that Higginbotham’s opinion in the UT admissions case will go down as one of the most thoughtful and well-written decisions on the issue of race and education.

“When you read the judge’s opinions, you know it is his words because he uses his words so precisely,” says Marianne Auld, an appellate law expert at Kelly Hart & Hallman in Fort Worth. “There are certain people called to the law the way some people are called to be missionaries. … That’s Pat Higginbotham.”

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